By Elise Skarda*

What does the Respect for Marriage Act do?

The Respect for Marriage Act (RFMA), passed December 13, 2022, is perceived by some as codifying into federal law the right to marry for LGBTQI+ individuals, as well as individuals of different racial and ethnic backgrounds.^[1] However, the law is less expansive than it appears at first glance. Instead of guaranteeing the right to marry, it merely dictates that states must recognize same-sex marriages as valid where performed and that same-sex couples are eligible for the same federal benefits as opposite-sex couples, in line with the full faith and credit clause from Article IV §1 of the U.S. Constitution.^[2] It also prevents SCOTUS from retroactively invalidating existing same-sex marriages if Obergefell v. Hodges were to be overturned.^[3]

The Respect for Marriage Act also formally repealed the Defense of Marriage Act (DOMA).^[4] DOMA limited “federal recognition to opposite-sex spouses.” In United States v. Windsor (2013), the Supreme Court held this discriminatory law unconstitutional.”^[5] Despite the unenforceability of this limitation, and thus DOMA’s toothless existence, it remained “on the books” until the Respect for Marriage Act was passed.^[6]

How did we get the Respect for Marriage Act passed?

Legislative compromise ensured Republican Senate support for the Act. With a tight majority in the Senate, Democrats managed to push the Act through by adding protections for nonprofit religious organizations.^[7] The compromise provides that nonprofit religious organizations are not required to provide accommodations or services for the solemnization or celebration of a same-sex marriage.^[8]

Why is this Act important?

While codifying these rights has been important since Loving v. Virginia^[9] and Obergefell v. Hodges, the importance became significantly more pronounced after the decision in Dobbs v. Jackson Women’s Health.^[10] In Dobbs, the Supreme Court overruled fifty years of precedent, and in a concurring opinion, Justice Thomas indicated that the Court may be open to overturning other precedents, including Obergefell v. Hodges.^[11] This is significant because Roe v. Wade, Obergefell, and Loving, among others, rest on the basis of substantive due process.^[12]Substantive due process, which comes from the Court’s interpretation of the Fifth and Fourteenth Amendments, gives protection from federal government interference for certain fundamental constitutional rights.^[13] In Justice Thomas’s concurring opinion in Dobbs, he indicated that he would be willing to overturn other cases that relied on substantive due process.[14] Examples of cases based on substantive due process grounds include marriage, in Obergefell and Loving, and privacy, such as in Griswold v. Connecticut and Roe v. Wade.^[15] Overturning Roe on substantive due process grounds opens the door for overturning these other cases on the same basis.

What happens if Obergefell is overturned?

If Obergefell is overturned, the Respect for Marriage Act provides almost no additional protections for married same-sex couples other than reaffirming the full faith and credit clause, reminding states that they must recognize validly performed marriages in other states. Given this, public approval is critical in understanding the consequences of a world without Obergefell.

The most recent Gallup Poll (2022) shows that same-sex marriage approval is at a (slight) all-time high, at 71%.^[16] However, twenty-five states have constitutional and statutory bans on same-sex marriage that would go into effect immediately if Obergefell were overturned.^[17] An additional four states have a statutory ban only.^[18] In 2022, 20 of the all-time high of 278 anti-LGBTQI+ bills introduced passed into law.^[19]  In the first nineteen days of 2023, the ACLU reports that there are more than 120 anti-LGBTQI+ bills introduced in the United States at the state and federal level.^[20] While this does not mean that every bill will be passed, it alludes to a possible contradiction between the legislature and elected representatives and the same-sex marriage approval rate. Are those in power acting in a way that accurately reflects the majority’s opinion? The data indicates no.

Assuming the Respect for Marriage Act is not invalidated, states can choose whether to allow same-sex marriage, and other states and the federal government must respect those marriages as valid.^[21] According to each state’s marriage laws, there could be issues regarding residency if couples from a state that bans same-sex marriage wishes to be married in another state. This could lead to an increase in permanent or temporary moves from the prohibiting states to the permitting states.

What can we do now?

The Equality Act, which would prohibit discrimination based on sex, sexual orientation, and gender identity, was passed in the House in 2021.^[22] Though it references discrimination against LGBTQ individuals including in relation to same-sex marriages, the Equality Act does not compel states to recognize same-sex marriage.[23] The Equality Act would extend the provision of Title VI of the Civil Rights Act, which bars institutions that engage in racial discrimination from receiving federal funding, to LGBTQI+ individuals.^[24] According to the Human Rights Watch, currently 20 states and Washington, D.C. address discrimination in education against students based on sexual orientation alone, or sexual orientation and gender identity.^[25] The Equality Act would ensure that these and similar issues are addressed at a federal level, thus further protecting LGBTQI+ individuals.

The current Court has yet to rule directly on LGBTQI+ issues, and thus the current Court’s stance is unknown. However, pre-Dobbs, it was standard for the Court to follow its own precedent, unless it believed it was substantially incorrect in its decision. The current Court made the decision in Dobbs to take away rights from tens of millions of individuals. ^[26] It appears the precedent of following precedent has been weakened, if not completely disregarded. No one can predict the future, but if the Court continues on this path, there is a very real possibility that Obergefell v. Hodges will be overturned. We should fight for protecting the rights of LGBTQI+ individuals by establishing statutes that go further than the Respect for Marriage Act in order to protect marriage rights at both the state and federal level.

^[1] Emma Kinery, Biden signs bill to protect same-sex and interracial marriages, Consumer News & Bus. Channel: Pol. (Dec. 13 2022, 4:19 PM, last updated Dec. 13 2022, 5:14 PM), https://www.cnbc.com/2022/12/13/biden-signs-respect-for-marriage-act-to-protect-same-sex-interracial-marriages.html (last visited Jan. 29, 2023).

^[2] Respect for Marriage Act, Pub. L. 117–228, §4–5, 136 Stat. 2306 (2022); US Const. art. IV, §1.

^[3] Employee Benefits Institute of America, Respect for Marriage Act Codifies Federal and State Recognition of Same-Sex Marriages, Repeals DOMA, Thomson Reuters: Tax and Acct. (Dec. 13, 2022), https://tax.thomsonreuters.com/blog/respect-for-marriage-act-codifies-federal-and-state-recognition-of-same-sex-marriages-repeals-doma/ (last visited Jan. 29, 2023); Obergefell v. Hodges, 576 U.S. 644 (2015) (legalizing same-sex marriage in all states).

^[4] Respect for Marriage Act, Pub. L. 117–228, §3, 136 Stat. 2306 (2022).

^[5] United States v. Windsor, 570 U.S. 744, 770 (2013).

^[6] Employee Benefits Institute of America, Respect for Marriage Act Codifies Federal and State Recognition of Same-Sex Marriages, Repeals DOMA, Thomson Reuters: Tax and Acct. (Dec. 13, 2022). https://tax.thomsonreuters.com/blog/respect-for-marriage-act-codifies-federal-and-state-recognition-of-same-sex-marriages-repeals-doma/ (last visited Jan. 29, 2023).

^[7] Id.

^[8] Respect for Marriage Act, §6 (2022).

^[9] Loving v. Virginia, 388 U.S. 1, 2 (1967) (ruling Virginia’s antimiscegenation statute unconstitutional and legalizing inter-racial marriage for the entire United States).

^[10] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM),

https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023).

^[11] Id.

^[12] Obergefell v. Hodges (2015); Loving v. Virginia (1967); Roe v. Wade, 410 U.S. 113 (1973) (legalizing abortion on substantive due process grounds).

^[13] Constitution Annotated, Amdt5.7.1 Overview of Substantive Due Process Requirements, Libr. of Cong.,https://constitution.congress.gov/browse/essay/amdt5-7-1/ALDE_00013728/.

^[14] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring) (“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”).

^[15] Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that Connecticut’s statute banning the use of contraceptive unconstitutional on substantive due process grounds that it violates the right to marital privacy).

^[16] Justin McCarthy, Same-Sex Marriage Support Inches Up to New High of 71%, Gallup: Pol. (June 1, 2022), https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx (last visited Jan. 31, 2023).

^[17] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM),

https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023); National Conference of State Legislatures, State Same-Sex Marriage Laws Without Obergefell (July 2022), https://s3.documentcloud.org/documents/22089452/state-same-sex-marriage-laws-without-obergefell.pdf.

^[18] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM), https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by state (last visited Jan. 29, 2023); National Conference of State Legislatures, State Same-Sex Marriage Laws Without Obergefell (July 2022), https://s3.documentcloud.org/documents/22089452/state-same-sex-marriage-laws-without-obergefell.pdf.

^[19] Press release, Am. C.L. Union, Over 120 Bills Restricting LGBTQ Rights Introduced Nationwide in 2023 So Far, (Jan. 19, 2023), https://www.aclu.org/press-releases/over-120-bills-restricting-lgbtq-rights-introduced-nationwide-2023-so-far.

^[20] Id.

^[21] Respect for Marriage Act, Pub. L. 117–228, §4–5, 136 Stat. 2306 (2022).

^[22] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM), https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023).

[23] Equality Act, H.R. 5, 117th Cong. §2(a)(2) (2021).

^[24] Tom Gjelten, Some Faith Leaders Call Equality Act Devastating; For Others, It’s God’s Will, Nat’l Pub. Radio (Mar. 10, 2021, 5:01 AM), https://www.npr.org/2021/03/10/974672313/some-faith-leaders-call-equality-act-devastating-for-others-its-gods-will (last visited Jan. 29, 2023).

^[25] Id.

^[26] Youyou Zhou and Li Zhou, Who overturning Roe hurts most, explained in 7 charts, Vox (July 1, 2022, 9:50 AM), https://www.vox.com/2022/7/1/23180626/roe-dobbs-charts-impact-abortion-women-rights (last visited Jan. 29, 2023).

 

*Elise Skarda is a Staff Member for the Journal of Law & Inequality Vol. 41.